P. N. Khanna, J. ( 1 ) THIS appeal under Section 109 of the Trade and Merchandise Marks Act, 1958 (hereinafter called the "act)" is directed against the order of the Assistant Registrar for Trade Marks, New Delhi, by which he dismissed the application of Messrs Lakhpat Rai Sampat Rai Sadh (herein called the "appsllants") under Section 56 (2) of the Act for rectification of the register in respect of entry relating to the registered trade mark No. 186774 in class 5. registered in respect of "banslochan", an ayarvedic medicine, in the name of Dhanpat Rai Goel (herein called the "respondent * ). Rectification was sought wither by expunging the entry relating to the registered trade mark No. 186774 registerad as of September 5, 1958, or by varying it by deleting the device of "bamboo grove" and word "banslochan" appearing in the mark. ( 2 ). According to the facts, as found by ihe Assistant Registrar of Trade Marks and about which there is no dispute, the appellants claim to have been manufacturing and selling for more than 75 years an ayurvedic tonic for health named "banslochan" prepared from the extract of a particular kind of bomboo. They are the proprietors of registered trade Mark No. l48579 in class 5 in respect of "banslochan" consisting of a pictorial device of a jungle or grove of bomboos with the words "bans Ka Jungle" and Asal Banslochan". The pictorial device of a bomboo grove, clamed to be an artistic display of bomboos, was adopted by them in 1945. Since they have been continously and extensively using lbe said trade mark in respect of their goods. The value of their "banslochan", sold under the said trade Mark, amounted to several lacs of rupees every year and they had been speading on its publicity over Rs. 10,000/ a year They have been recognised as the oldest and most relaible manufacturers of "banslochon". They sell these goods in tin containers with the labels bearing their aforesaid trade mark which has acquired high reputation in the market. The appellants do not claim exclusive right over the use of the word "banslochan", being the name of the goods itself or over the device of a bamboo, which is descriptive of the goods. Their trade mark was registered subject to the disclaimer that it shall give no right to the exclusive use of the device of a bomboo. The appellants do not claim exclusive right over the use of the word "banslochan", being the name of the goods itself or over the device of a bamboo, which is descriptive of the goods. Their trade mark was registered subject to the disclaimer that it shall give no right to the exclusive use of the device of a bomboo. ( 3 ) THE Assistant Registrar observed that from visual aspect, tbe device of bamboos forms the most prominent feature of the appellants trada mark. The first impression formed in a purchaser mind, according to him, would, ha all probability, be that of a jangle of bomboos. The words "bans ka Jungle" in Hindi script, printed in small type under the said device, according to him, formed the real feature of a trade mark value of this mark. He was of the opinion, that some at least of the consumers might be referring to the appellants goods by the name, "bans ka Jungle Banslochan. " The respondents started selling "banslochan" packed in tin containers with a table displaying the impugned trade mark conslsting of the pictorial device of a bomboo grove more or less similar to that of the appellants. " with a monogram consisting of letters "bbc", placed at the foot and covering a small part of the said device. ( 4 ) IT has been argued by Mr. N. K. Anand, learned counsel for the respondent, which argument was also adopted by the Assistant Registrar, that "banslochan" being an extract prepared from bamboos, the cluster or the grove of bamboos is merely descriptive of the goods and has no distinctive character. The customers in general would be aware of this and would, therefore, not attach much trade mark significance to the device of bamboos. They may either look to the proprietors name or to some other words or feature by which the trade mark can be remembered. On the other hand, the display of monogram " BBC" in the respondents trade mark, said Mr. Anand, is so prominent that it attracts the attention of the customers This monogram, it was claimed, distinguishes the respondents murk from that of the appellants. The respondents trade mark, it was urged, was not likely, under the circumstances, to be mistaken for the appellants trade mark in the normal course of trade. ( 5 ) TO me the arguments of Mr. The respondents trade mark, it was urged, was not likely, under the circumstances, to be mistaken for the appellants trade mark in the normal course of trade. ( 5 ) TO me the arguments of Mr. Anand and the reasoning adopted by the Assistant Registrar do not appsar to be convincing The question involved is whether the device of a "bamboo grove" or "bans ka Jungle" is descriptive or distinctive, It merely the former, it has no trade mark value : but if the latter, it cannot be ignored. Merely because "banslochan" is an extract prepared from special type of bamboos does not mean that a peculiar design in which the bamboos may be displayed, would also be descriptive. Bamboo, per se may be descriptive, but not so the design in which it may be depicted. The argument that the bamboo grove appearing in the appellants trade mark is nothing but a photographic view of a cluster of bamoos without any originality or idea or design cannot be accepted. Bamboo can be displayed in a variety of manners. It may be one bamboo stick or a bundle or bamboo sticks placed either horizontaly or vertically against a wall or some other object or depicted in any other way. The manner in which the bamboos can be aggragated or arranged can be distinctive. Bamboos shewn growing in a wild grove certainly convey a distinguishing idea. "banslachan" may be said to be an extract prepared from bamboos but it is not prepared from a grove , the idea of which is conveyed by the appellants trade mark, and which must be said to be distinctive. The pictorial device of bamboo grove or Banska Jungle is the appellants trade mark, therefore, cannot be brushed aside merely by saying that it is desiptive of the goods sold under its banner, which it is not. The device of the bamboo grove is capable of making an impression on the minds of the customers, who as observed by the Assistant Registrar himself, are likely to order the appellants goods by the distinctive game of Bags Ka Jungle Banslochan", ( 6 ) THE trade mark of the respondent also gives an equal prominence to the pictorial device of and bomboo grove. The question therefore. The question therefore. arises whether the monogram "bbc" prominently displayed at the foot of the said grove, is capable of wiping cut the impression of the bamboo grove itself, which is conveyed to the mind of the potential customer. The answer, appears to me, to be dearly in the negative. The monogram "bbc" in the respondents trace mark, does cot obliterate the bomboo grove displayed prominently above it. ( 7 ) IN order to datermine, whether the impugned mark is likely to deceive or cause confusion, the twoo marks have not to be compared placed side by side. The unwary customer is guided only by his general recollection of what he observes. Having seen the appellants trade mark, which admittedly gives him the impression of a bomboo grove, he is likely to be led away by the more or less similarly of the bamboo grove in the respondents trade mark, on account of his recollection of she general impression formed earlier, into thinking that it is the same as that of the appellants, The customer, therefore, is likely to be deceived into thinking that the trade mark before him which may be of the respondent, it the same as that of the appellants, of which he is carrying just a general impression. This would Cause the confusion, which the Act aims to avoid. ( 8 ) UNDER Section 11 of the Act a mark, which inter alia, by its use would be likely to deceive or came confusion, cannot be registered as a trade mark. Under Section 12 (1) of the Act BO trade make can be registered in respect of any goods, which is identical with or deceptively similar to trade mark which is already registered in the name of a different proprietor in respect of ihe same goods. Both Sections 11 and 12 (1 ). therefore, provide a bar to the registration of the respondent s trade mark ( 9 ) THE above conclusion appears to me to be so obvious and unavoidable, that it does not require looking into the many decided cases cited by Mr. Anoop Singh, the learned counsel for the appellants, to support it. But the facts in the case of Orange Grove Fruit Drink s Lilited s Appeal, are to strikingly on all fours with the facts in the in stant case, that I cannot help but noticing it. Anoop Singh, the learned counsel for the appellants, to support it. But the facts in the case of Orange Grove Fruit Drink s Lilited s Appeal, are to strikingly on all fours with the facts in the in stant case, that I cannot help but noticing it. In the Orange Grove case, the words "orange Grove" were accepted for registration in respect of orange cordials, as being distinctive. (Also see Hurry Reynolda v. Laffeaty s Ltd. and the "pomral" case.) ( 10 ) MR. Anand conteneded that the device of a bamboo has been disclaimed by the appellants. The registration of their trade mark was specifically made subject to the disclaimer, that It shall give no right to the exclusive use of the device of a bamboo. It was contended that under Section 28 (2) of the Act, the exstusive right to the use of a trade mark given under sub-section (1) was subject to the limitations to which the registration was subject. The appellants, therefore, it was urged, could not raise objection to the said device being adopted by anyone else. The argument over-looks the real nature of the disclaimer. The device of a bamboo may have disclimed; our not the device of a grove. A special : opresentation in the shape of grove, may be of bamboo cannot, therefore, be said to have been disclaimed. This device has peculiarities of its own, which give it disnctiveness. It has came to be associated in the minds of the public and the trade, through long user, with the appellants goods. The disclaimer, subject to which the appellant s mark was registered, therefore, would not stand in thair way of seeking protection for their device of a bamboo grove. The proviso to Section 17, under which a disclaimer is added, as was observed by the Supreme Court in Registrar of Trade Marks v. Ashok Chandra Rakhit Ltd. , preserves in fact any right, which the proprietor may otherwise have under any other law herein relating to the mark or any part thereof. ( 11 ) I have, therefore, not been able to see any justification for dismissing the appellant s application for rectification. The impugned trade mark belonging to the respondent was registered without sufficient cause and has wrongly remained on the register. ( 11 ) I have, therefore, not been able to see any justification for dismissing the appellant s application for rectification. The impugned trade mark belonging to the respondent was registered without sufficient cause and has wrongly remained on the register. I, therefore, accept the appeal, set aside the order of the Assistant Registrar of Trade Marks and allow the appellant s application for rectification under Section 56 (2) of the Act, In the result, the entry in the register relating to the registered trade mark No. 185774 shall be varied by deleting the device of bamboo grove appearing in that mark. The respondent shall also pay the appellants costs of this appeal. Counsel fee Rs. 200. 00.